Domestic Rag Co. v. Cutler

162 N.E.2d 35, 339 Mass. 778, 1959 Mass. LEXIS 926

Opinion

Order-dismissing report affirmed. This is an action of contract by the payee against the maker of a promissory note. The payee had sold and delivered merchandise to a corporation in which the defendant was the principal stockholder and treasurer and which was indebted to the plaintiff when the buyer corporatian ceased to do business in June, 1955. The defendant thereafter established his own business. When on April 20, 1956, he was met by a representative of the plaintiff who requested him to give him his personal note for the amount of indebtedness owed by the old corporation, promising if he did so to forbear any action against the corporation or the defendant, the defendant did so. A receiver of the corporation was appointed in October, 1956. The present action is on that note. The trial judge declined to find that there was no consideration for the defendant’s note. He could find that the note was given on account of the preexisting indebtedness of the old corporation and that the plaintiff) in obtaining the defendant’s note and promising to forbear suit, was acting in good faith. Silver v. Graves, 210 Mass. 26, 30. Codman v. Dumaine, 249 Mass. 451, 457-458. Melotte v. Tucci, 319 Mass. 490. It was a question of fact whether in the circumstances the defendant was benefited by the plaintiff’s forbearance to sue. The judge’s finding that the note was not lacking in consideration, like any other finding of fact, must stand.

Sheldon Newman, for the defendant. Frank T. Wofcik, for the plaintiff, was not called on.